:

real estate. So also in Chapple v. Cooper (1) an infant widow was held liable upon her contract to pay for her deceased husband's funeral, because the contract was considered to be for her personal benefit. It was just as much for the benefit of the defendant in the present case that he should carry on trade as that he should enter into an apprenticeship or a contract of service: Evans v. Ware. (2) The highest that the case can be put against the plaintiff is that the contract was not void but voidable at the election of the defendant see Bruce v. Warwick (3), where Gibbs C.J. said that an infant's trading contract "is in the same case as other contracts made by an infant, which he may either avoid or enforce at his pleasure." The defendant never has avoided this contract, and, being for his benefit, it is therefore enforceable against him. In any event an action will lie in the circumstances of this case for money had and received. There has been a total failure of consideration. The hay was never delivered and the clover was taken back. The defendant will not be permitted to keep both the money and the goods. In Esron v. Nicholas (4) the guardian of an infant, with the infant's assent, granted a lease for which a premium was paid; the infant on attaining his majority granted a new lease of the same land to another lessee. On a bill by the first lessee to have his lease confirmed or the premium refunded the Court decreed the latter alternative. In Bristow v. Eastman (5) it was held by Lord Kenyon that an action for money had and received will lie against an infant to recover money which he had embezzled. It is true that Lord Kenyon based his decision on the fact that that case was in substance an action ex delicto, but there was evidence in the present case that the contract was in fact induced by fraud on the part of the defendant, and the plaintiff is at least entitled to have a new trial on that ground. [He also referred to Maddon v. White (6); Zouch v. Parsons (7); Magauran v. Jamieson (8); In re Seager (9); Corpe v. Overton (10); Thurstan v. Nottingham Permanent

(1) (1844) 13 M. & W. 252.

(2) [1892] 3 Ch. 502.

(3) (1815) 6 Taunt. 118.

(4) (1783) 1 De G. & Sm. 118, n. (5) 1 Esp. 172.

(6) (1787) 2 T. R. 159.

(7) (1765) 8 Burr. 1794.

(8) (1818) 2 Molloy's Ir. Ch. Rep. 520.
(9) (1889) 60 L. T. 665.

(10) (1833) 10 Bing. 252.

1912

COWERN

v.

NIELD.

1912

COWERN

v.

NIELD.

Benefit Building Society (1); Kirton v. Eliot (2); Clements
v. London and North Western Ry. Co.(3); Madox v. Eden (4) ;
Roberts v. Gray (5); Pollock on Contracts, 8th ed., pp. 69, 70.]
Hogg replied.

PHILLIMORE J. In this case the plaintiff brought an action in the county court for damages for breach of contract, and, alternatively, for money paid to the defendant on a consideration which had wholly failed.

The plaintiff's case was that he had ordered some hay and clover from the defendant, that the hay had never been delivered and that he refused to take delivery of the clover because it was rotten, and he sought to recover from the defendant the proceeds of a cheque which he had given to the defendant in payment for the hay and clover. The defendant contested the claim on the merits, and also pleaded infancy. The county court judge found as a fact on the evidence that the plaintiff was entitled to reject the clover; and with regard to the defence of infancy he held that as the defendant was carrying on business the contract was for his benefit, and that the defendant was, therefore, liable to repay to the plaintiff the money which the plaintiff had paid to him for the hay and clover. The question is whether the county court judge was right in so deciding.

It is no doubt correct to say, in a general sense, that contracts of a certain character are enforceable against an infant if they are for his benefit, but an infant is not necessarily liable on a contract merely because it is for his benefit. I am satisfied from the authorities which have been cited to us that the only contracts which, if for the infant's benefit, are enforceable against him are contracts relating to the infant's person, such as contracts for necessaries, food, clothing, and lodging, contracts of marriage, and contracts of apprenticeship and service. In my opinion a trading contract does not come within that category. Counsel for the defendant contended that at common law all contracts which were for the benefit of an infant were enforceable against him, and

(1) [1902] 1 Ch. 1.

(2) (1613) 2 Bulst. 69; S. C. sub nom. Ketley's Case, 1 Brownl. 120.

(3) [1894] 2 Q. B. 482.

(4) (1796) 1 Bos. & P. 480.

(5) (1912) 28 Times L. R. 387.

he referred to Earl of Buckinghamshire v. Drury (1) as an
example of a further class of contract which comes within the
rule, namely, a contract arising out of marriage by which an
infant wife can bind herself. I doubt very much whether the
decision in that case turned on the law of contract at all. The
Lord Chancellor (Lord Henley, afterwards created Earl of
Northington) thought that the statute of 27 Hen. 8 which intro-
duced jointures extended to adult women only, and that an infant
widow might therefore waive her jointure and claim dower. The
decision of the Lord Chancellor was reversed by the House of
Lords, but both the Earl of Hardwicke and Lord Mansfield, while
deciding that the infant widow, having the provision stipulated
for her by her marriage articles, was precluded from claiming
dower, expressly refrained from basing their decision on the
ground of contract. They decided the case on a different ground,
namely, that it was part of the recognized practice on marriage
to give the wife a jointure, and that the statute of 27 Hen. 8
did apply to infants as well as to adults. The Act of 18 &
19 Vict. c. 43 recites that "great inconveniences and dis-
advantages arise in consequence of persons who marry
during minority being incapable of making settlements of
their property," and proceeds to enact that infants may with
the approval of the Court of Chancery make valid marriage
settlements. That recital seems conclusive as to the law on this
branch of the subject and to dispose of the suggestion as to there
being a particular class of contract binding an infant wife.
Infants, therefore, are not liable ex contractu, except in the
cases I have mentioned, but they always have been liable ex
delicto. If an infant has acquired personal property to which
he has no title an action of trover or detinue will lie against
him, and in Bristow v. Eastman (2), which was an action against
an infant for money had and received which he had embezzled, and
which has, I think, an important bearing on the present case,
Lord Kenyon said that "he was of opinion that infancy was no
defence to the action; that infants were liable to actions ex
delicto, though not ex contractu; and though the present action
was in its form an action of the latter description, yet it was of
(1) 2 Eden, 60.
(2) 1 Esp. 172.

1912

COWERN

9.

NIELD.

Phillimore J.

the former in point of substance." That proposition, which is
supported by the authority of Kay J. in In re Seager (1), shews
that an action for money had and received can be maintained
against an infant if the substance of the action is that the
infant has obtained the money ex delicto. If, therefore, the
plaintiff can prove in the present case that the defendant obtained
his money by fraud the action can be maintained. I do
not think it is necessary to go through all the cases that were
referred to in the argument, for none of them shews more
than that on certain personal contracts an infant is liable
if the contract is for his benefit, and that there are certain
contracts on which, if approbated by the infant after he comes
of
age, he may sue or be sued.

For these reasons I am of opinion that this appeal must be allowed, but we think that the case ought to go back for a new trial in order that the plaintiff may have an opportunity of proving, if he can, that his money was obtained from him by the defendant by fraud.

BRAY J. I am of the same opinion. The county court judge has found that the contract was for the infant's benefit, and has held as a matter of law that the action is, therefore, maintainable. I think his decision was wrong. It is true that there are certain contracts which, if they are for the infant's benefit, can be enforced against him; and it is said this trading contract was for the benefit of the infant because it was for the benefit of the infant that he should learn how to carry on a trade. But in my opinion there is no authority for saying that a trading contract, even if for the benefit of the infant, is an exception to the rule that an infant is not, except in certain cases, liable on contracts made by him.

Then it was said that in the circumstances of this case there was a right of action for money had and received, and a case was cited in which it was held that, though the action was in form an action ex contractu, the substance must be looked at, and if in substance the action really was ex delicto, it was maintainable. agree with my brother Phillimore that there ought to be a new

(1) 60 L. T. 665.

I

trial in order that the plaintiff may have an opportunity of proving, if he can, that this action in substance arises ex delicto.

Appeal allowed. New trial ordered.

Solicitors for plaintiff: G. R. Thorne, Robinson & Co., for Thorne & Haslam, Wolverhampton.

Solicitors for defendant: Waterhouse & Co., for Sherratt & Nelson, Kidsgrove.

1912

COWERN

v.

NIELD.

F. O. R.

LEES, APPELLANT v. LOVIE, RESPONDENT.

Licensing Acts-Club-Club requiring Registration" Unregistered Club"Club struck off Register-Re-registration of same Club-Licensing (Consolidation) Act, 1910 (10 Edw. 7 & 1 Geo. 5, c. 24), 88. 92, 93, 95.

A club which has been struck off the register of clubs by an order of a Court of summary jurisdiction, under s. 95 of the Licensing (Consolidation) Act, 1910, cannot again be registered under the Act as a club.

CASE stated by justices.

The appellant was convicted and fined for having supplied intoxicating liquor to a member upon the premises of an unregistered club, the Willesden Radical Club, contrary to s. 93 of the Licensing (Consolidation) Act, 1910.

The Willesden Radical Club was in January, 1903, placed upon the register of clubs under the provisions of the Licensing Act, 1902. It remained upon the register until April 21, 1910, when a Court of summary jurisdiction ordered that the club should be struck off the register and that the premises should not be used for the purpose of any club requiring registration under the Licensing Act, 1902, for a period of six months. Upon an appeal to quarter sessions the period of disqualification was reduced to three months.

In January, 1911, application was made to the clerk to the justices to enter the same club upon the register of clubs, and a return was made and the proper fee tendered in intended compliance with the provisions of s. 92 of the Licensing (Consolidation)

1912

May 18.